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South African rights group, AfriForum, has made legal history by launching the country’s first dedicated private prosecutions unit to be headed by celebrated former state prosecutor Gerrie Nel. The development comes amid accusations that the country’s National Prosecuting Authority is politically biased and highly selective about the prosecutions it pursues. Nel said his main concern was that “everyone should be equal before the law.” Politics and Society Editor Thabo Leshilo asked legal experts Chantelle Feldhaus and René Koraan to explain how it will work.

How do private prosecutors work – are private prosecutorial capabilities (units) common in other countries?

In most countries prosecutors have the power to decide whether to prosecute or not. In other words there’s no principle of compulsory prosecution. This means that people who believe they have been aggrieved can fall through the net if the state declines to prosecute their case.

Private prosecutions are allowed in many countries under common law. These include Australia, Canada, Kenya, Zimbabwe and the UK – as well as many more.

The South African Criminal Procedure Act makes provision for two forms of private prosecutions. Section 7 of the act provides for private prosecution by an aggrieved individual on the basis of a certificate nolle prosequi – a declaration the National Prosecuting Authority (NPA) not to prosecute.

And section 8 provides for private prosecution under statutory right. This means that any person can conduct a prosecution in a court competent to try the offence.

Private prosecution must be instituted and conducted in the name of the private prosecutor, or prosecutors, in terms of section 10 of the Criminal Procedure Act.

There are certain limits. Two or more people can’t prosecute the same charge except if they’ve been injured by the same offence. And the law limits who can launch and conduct a private prosecution. Someone can only pursue a private prosecution if they can prove substantial interest in a matter, for example if they have suffered an injury. This right also extends to a next of kin – for example it can apply to a husband if the offence was committed against his wife or child.

The right also extends to a legal guardian or curator of a minor or lunatic if the offence was committed against someone’s ward.

How do private prosecutors work with state prosecutors?

The NPA can stop a private prosecution if it wants to prosecute the matter itself. And if the accused in a private prosecution pleads guilty, the prosecution must be continued by the state prosecutor.

Does South Africa’s constitution make provision for this?

Section 34 of the Constitution of South-Africa entitles everyone to bring a dispute to a court or tribunal to seek redress. But there’s no specific constitutional right to institute a private prosecution.

Section 179 of the Constitution creates a single Prosecution Authority. This has the power to institute criminal proceedings on behalf of the state. A decision on whether or not to prosecute must be based on the NPA’s prosecutions policy . Its decisions must be taken impartially – without fear, favour or prejudice. And the prosecuting policy must serve the interest of the public in general, and not a specific group.

A decision about a prosecution can be reviewed after consulting the relevant Director of Public Prosecutions. The review takes into account representations from the accused person as well as the complainant. This means that if a person is not satisfied with the decision not to prosecute it can be taken on review.

What are their pitfalls – can they be used for political ends or to drive private agendas?

The main hurdle for any private prosecutions will be for individuals to show that they have suffered an injury.

Before the private prosecutor can go ahead he or she must make a deposit with the magistrate’s court as security that the charge will be prosecuted and brought to a conclusion without delay. The amount of money is determined by the Minister of Justice. Once the accused is called to plead he can apply to the relevant authority to review the amount. The court can then require the prosecutor to deposit any additional amount that’s decided.

The amount paid as security is forfeited to the state if the private prosecutor fails to prosecute a charge to conclusion, or without undue delay. This also happens if a charge is dismissed because of the failure of the private prosecutor to appear on the court date that’s been set down.

And if the charge against the accused is dismissed, or the accused is acquitted, or a decision on appeal favours the accused‚ the court can order the private prosecutor to pay the costs, or part of the costs and expenses incurred during the trial. Payment goes to the accused. And if the court believes that a private prosecution was unfounded and vexatious‚ it can award the accused costs and expenses.

In turn, if an accused is convicted on a private prosecution, the court can order the costs and expenses of the private prosecutor to be paid by the state.

How can a unit such as this one help individuals bring private prosecutions?

An individual’s statutory right to institute private prosecution is seen as a “safety-valve” in the machinery of the law. It’s also seen as an indirect way of controlling corruption and incompetence in the state’s prosecutorial services. A unit like the one set up by Afriforum can help an individual if the NPA refuses to prosecute.

What’s the history of private prosecutions in South Africa – any successes?

Even though private prosecutions have been allowed in South African for almost 100 years, its fairly rare. There have, however, been two important cases.

In 1988 the then Attorney General of the Cape declined to prosecute a 13-man security police task force responsible for the murder of three people. The families of some of the victims took the case to court in South Africa’s first private prosecution, but failed to win a conviction.

In the other, Faizel Hendricks was sentenced to jail for 15 years in 2016 for murdering his girlfriend 10 years earlier. This became the first successful murder conviction by means of private prosecution in South Africa.